Who Can Claim Support From an Estate Under Manitoba's Dependants Relief Act?

Sometimes a will, or the rules that apply when there is no will, leave a close family member without enough to live on. Manitoba has a law for that situation. It lets certain people ask the court for support from the estate.

This article explains who qualifies as a dependant, what financial need means, what the court weighs, and what an order can look like. Every situation turns on its own facts, so a lawyer can confirm how this applies to you.

This article covers the law of Manitoba.

What the Act does

Under The Dependants Relief Act, if a dependant is in financial need, the court may order that reasonable provision for maintenance and support be made out of the deceased's estate. The court is the Court of King's Bench.

The Act applies whether the person died with a will or without one, and despite the will or The Intestate Succession Act. This is how a court can vary a will's terms. What counts as reasonable provision is assessed as of the date of the hearing, not the date of death.

There is a time limit for applying, generally up to six months from the grant of probate or letters of administration. See our separate article on time limits for the details and exceptions.

Who counts as a dependant

The Act defines dependant in section 1. It includes the spouse, a former spouse with a subsisting maintenance order or agreement, certain common-law partners, certain children, and substantially dependent grandchildren, parents, grandparents and siblings.

A child includes one conceived before the parent's death and born alive afterward, and a child the deceased treated as their own. Certain paid foster placements are excluded.

An adult child has no automatic claim. The child must fit the definition, being unable to support themselves or substantially dependent on the deceased, and must also be in financial need.

Financial need and what the court weighs

Being a dependant is not enough. The applicant must also be in financial need. The court focuses mainly on the dependant's financial needs. It considers, among other things, the size and nature of the estate, the dependant's assets and foreseeable resources, the steps and cost to become self-sufficient, age, physical and mental health, and capacity to support themselves.

The court also looks at property a spouse or common-law partner received under The Homesteads Act or The Family Property Act, entitlements from the estate outside the Act, other claims on the estate, provision the deceased made during life, and a child's education aptitude and prospects. For a child the deceased treated as their own, it considers the natural parents' primary duty to support and whether they met it.

The court may inquire into any relevant matter and order further evidence. It may accept evidence of the deceased's reasons for the will or for not providing, including a signed written statement. It weighs such statements by considering all circumstances bearing on their accuracy.

What an order can look like, and protection while you wait

Support may be ordered from income, capital or both. It can take the form of periodic payments, a lump sum (paid or held in trust), transfer of specified property, use of property for life or a period, security such as a charge on property, or any other method the court considers appropriate. The court may attach conditions and directions.

• Interim order: if you urgently need financial help before the final decision, the court may make an interim order, after service on the personal representative.
• Distribution freeze: once notice of the application is served on the personal representative, they must not distribute the estate until the court decides, unless all eligible persons consent or the court orders otherwise. A representative who distributes in breach is personally liable.
• Immediate needs: the representative may still advance funds for the immediate needs of dependants who are beneficiaries.
• Public Guardian and Trustee: notice must go to the Public Guardian and Trustee if a dependant or beneficiary is a minor, has a committee under The Mental Health Act, or is an adult with an intellectual disability. The Public Guardian and Trustee may appear and be heard.

No order may be made until everyone affected has been served with notice and may attend and be heard, although the court may waive notice to a person if reasonable efforts to serve them failed or they cannot be identified.

Spouses and what to do next

A surviving spouse or common-law partner's rights under The Homesteads Act and Part IV of The Family Property Act rank ahead of dependant rights under The Dependants Relief Act. A person entitled to equalization may still apply under that Act. Whether you are a spouse or another kind of dependant, the steps below can help you prepare.

• Note the date probate or letters of administration were granted, because the time limit runs from then.
• Gather proof of your relationship, your dependence on the deceased, and your income, assets and expenses.
• Collect a copy of the will, if there is one, and any written statement of the deceased's reasons.
• Ask a lawyer promptly whether you qualify and whether you need interim support.
• Check whether a dependant or beneficiary is a minor, has a committee under The Mental Health Act, or is an adult with an intellectual disability, because the Public Guardian and Trustee must then be given notice and may appear and be heard.

Frequently asked questions